Law Commons^™

A New Reporter Confronts The Supreme Court’S Unpublished Decisions, Peter W. Martin

Cornell Law Faculty Working Papers

For over two hundred years, the United States Supreme Court has been served by an officially designated “Reporter” charged with overseeing the publication of its decisions. While the statutory framework within which the Court’s Reporter of Decisions must operate has been revised from time to time, it has always reflected the need for that publication to be timely. It has also been focused solely on the production of printed volumes, a growing anachronism in an era of linked and searchable law data. Because of the disconnect, delays in official publication of the Court’s decisions grew over the course of this …

Representative Sara Jacobs And Senator Dick Durbin Take Aim At The Dod Law Of War Manual – And Miss, Brian L. Cox

Cornell Law Faculty Working Papers

In a letter recently sent to the Department of Defense General Counsel, two lawmakers – Representative Sara Jacobs and Senator Dick Durbin – present a number of suggested revisions to the DoD Law of War Manual. In Part I, this Article conducts a critical assessment of the substantive suggestions. By adopting an approach that emphasizes maintaining the delicate balance between humanitarian considerations and military necessity, the critical assessment concludes that the suggested revisions to the Manual are inadvisable.

Part II then considers the Jacobs-Durbin letter in the broader context of public discourse and separation of powers. This component of the …

Critical Collections: Bringing A Critical Eye To Law Library Collection Development, Nicholas Norton

Cornell Law Librarians' Publications

Law schools throughout the United States are considering strategies to embed the concepts of antiracism, diversity, equity, and inclusion into legal education. How does the work of their law libraries intersect with this effort? One potential point of intersection is through law library collection develpment. This article offers an overview of strategies to both curate and bolster representation of diverse voices in an academic law library collection using the theories of critical legal information literacy and epistemic injustice.

Recovering Grammar, Rachel T. Goldberg

Cornell Law Faculty Publications

Three major reasons have been proposed for why legal writing professors do not—or should not—teach grammar. First, the argument goes, teaching grammar would take valuable time away from more important, higher-order writing concerns. Second, some legal writing professors do not feel comfortable teaching grammar because, while they can certainly spot grammar problems in their students’ writing, they never learned technical grammar terms themselves. Third, legal writing professors steer clear of grammar because it is perceived to be associated with remedial writing and “mere” skills teaching—associations that further confine legal writing professors to a lower academic status than their clinical and …

Defamation 2.0, Cortelyou C. Kenney

Cornell Law Faculty Publications

There is a literal prohibition in the media bar that media lawyers cannot represent plaintiffs in suits for defamation. The stated principle behind this rule—a rule that can result in excommunication from the premier media law organization if it is violated—is that playing both sides of the defamation game is disloyal to traditional media actors because any chance of victory could inadvertently distort the law of defamation to increase the risk of frivolous suits against media outlets or other innocent third parties. But has the maxim finally gone too far?

Fueled by a new model where media profits are driven …

Beliefs And Probabilities: The Errors That Remain Are Mine Alone, Kevin M. Clermont

Cornell Law Faculty Publications

Imagine that the preface to a professor’s book implicitly asserts that all the propositions in the rest of his or her book are true, but explicitly acknowledges that experience would suggest some errors remain among those propositions. The prof thereby seems paradoxically to believe inconsistent statements. But in fact this famous preface paradox is an illusion. The first statement is a belief reflecting epistemic uncertainty, while the second is a probabilistic statement about aleatory uncertainty. If one were to convert the probability into a belief, one would see that the author rationally holds perfectly consistent beliefs.

Likewise the lottery paradox …

New York Times, Law Of War, And Congressional Overreach In U.S. Military Operations, Brian L. Cox

Cornell Law Faculty Working Papers

Recent high-profile reporting by the New York Times and other media organizations involving U.S. military combat operations has elevated public awareness related to Department of Defense targeting and accountability practices. While scandal generated by media coverage forms the basis for demands for reform of DoD practice from civil society groups and select members of Congress, the narratives developed in the investigative reporting have thus far not been exposed to comprehensive scrutiny. This article conducts a critical analysis of recent New York Times reporting involving U.S. military combat operations to assess the legitimacy of the narratives developed therein. After considering various …

Research Handbook On The Law And Politics Of Migration [Book Review], Nicholas Norton

Cornell Law Librarians' Publications

No abstract provided.

U.S. Micromobility Law (Major Road Work Ahead), Peter W. Martin

Cornell Law Faculty Working Papers

Over the past decade electrically powered bicycles, stand-up scooters, skateboards, and more have burst onto the nation’s streets and sidewalks. While some have been owned by their riders, a combination of embedded technology and smartphone apps allowed well-funded start-ups to distribute these novel e-vehicles across urban public spaces, making them available for on-demand, short-term rental. This blossoming of “micromobility” has taken place within physical and legal infrastructures ill-prepared for the change. Indisputably, most of the new types of individual motorized mobility fell outside established vehicle categories. The literal terms of existing law banned their use on all public rights of …

Rewriting Our Nation's Deadly Traffic Manual, Sara C. Bronin, Gregory H. Shill

Cornell Law Faculty Publications

Every day, Americans entrust their lives to a road system that is governed by the Manual on Uniform Traffic Control Devices for Streets and Highways (the Manual). On its face, this Federal Highway Administration (FHWA) publication is a straightforward technical document. It contains over eight hundred pages of engineering guidance on everything from traffic-light placement to the font of highway signs. It also establishes acceptable methods for officials to modify speed limits.

While such provisions may sound inconsequential, some of the Manual’s provisions have far-reaching, even deadly, consequences. They prioritize vehicular speed over public safety, mobility over other uses of …

Inflation In The 21st Century: Taking Down The Inflationary Straw Man Of The 1970s, Daniel Alpert, Cornell Research Academy Of Development, Law, And Economics, Mario Einaudi Center For International Studies

Cornell Law Faculty Publications

This overview of the history of, and future prospects for, undesirable levels of price inflation in the U.S. economy concludes that concerns raised in 2021 by several well-known economists and analysts – regarding the prospects for accelerating levels of inflation as a result of pandemic-era and post-pandemic fiscal and monetary policy (enacted and proposed) – is misplaced. The wisdom of continuing expanded fiscal policy from late 2021 onwards is supported by an analysis of the prospects for future inflation in terms of both (i) the shortfall in aggregate domestic demand relative to existing endogenous and exogenous supply; and (ii) the …

Competing Explanations For Parallel Conduct: Lessons From The Australian Detergent Case (Colgate-Palmolive), George Hay, E. Jane Murdoch

Cornell Law Faculty Publications

Parallel conduct by competing firms is an almost unavoidable phenomenon in the real world. Of course, parallel conduct can be the result of completely independent and uncontroversial behaviour, such as when all suppliers are affected by and respond unilaterally to an identical increase in costs. Few would suggest that, in such circumstances, the firms’ conduct should be subject to sanctions. At the other extreme, parallel conduct can be the result of interdependent and deliberately coordinated behaviour, such as when all suppliers meet in the proverbial smoke-filled room and agree to fix prices. Few would hesitate to condemn such conduct under …

A Detailed Assessment Of The Sexual Assault Prevalence Statistics At The Center Of The Military Justice Reform Movement, Brian L. Cox

Cornell Law Faculty Working Papers

“Twenty thousand service members experience sexual assault every year” while “only a tiny fraction of those end up with any kind of action at all in the military justice system.” Lynn Rosenthal, director of the DoD Independent Review Commission, recently offered this observation at a press conference while summarizing the findings reflected in the commission’s report. Senator Kirsten Gillibrand indicated in a recent blog post that “an estimated 20,500 service members are sexually assaulted every year” to make the case that there “is an epidemic of sexual assault in the military and the current military justice system has proven incapable …

Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin

Cornell Law Faculty Publications

American streets have become increasingly dangerous. 2020 saw the highest year-over-year increase in roadway death rates in 96 years, and the last year for which we have data on non-drivers, 2018, was the was the deadliest year for pedestrians and cyclists in three decades. Though this resurgence of road violence has many complex causes, what makes American roads uniquely deadly are laws that lock in two interrelated design problems: unfriendly streets and unsafe vehicles.

Design standards articulate how streets and vehicles look and function. As they have been enshrined in law, they favor drivers and their passengers over any other …

Iconic Designs, Icon Status, And Intellectual Property: Discussing Copyright And Fashion And The Ideal Mode Of Protection For Fashion Designs And Patterns, Bianca Lindau

Cornell Law Library Prize for Exemplary Student Research Papers

In the United States, the establishment of copyright protection for fashion designs and patterns has been a struggle that has only partially been successful. Protections available under design patent, trademark, and trade dress law only provide insufficient protection to fashion designs. Since the Star Athletica v. Varsity decision, it is clear that fashion patterns enjoy sufficient protection under copyright law. In the European Union and in Germany, the intellectual property protection capital of Europe, fashion designs enjoy much greater protection than in the United States. This paper uses a comparative approach to discuss the advantages and disadvantages of providing more …

Measuring The Effectiveness Of The Proposal To Divest Military Commanders Of Disposition Authority For Sexual Assault Cases: A Comparative Quantitative Analysis, Brian L. Cox

Cornell Law Faculty Working Papers

As suggestions to modify the practice of the U.S. military justice system return to the fore of American political discourse, the perennial proposal to divest commanders of authority to convene courts-martial to adjudicate allegations of sexual assault is once again at the center of the debate. While reformists are adamant that the suggested revision would support efforts to end what has been characterized as an “epidemic of rape” in the U.S. military, the precise connection between the “reform” and the desired improved outcomes remains tenuous. An assessment of jurisdictions that have already divested commanders of such authority could provide persuasive …

Transnational Law As A Framework For Law Clinics, Sital Kalantry, Rachael E. Hancock

Cornell Law Faculty Publications

As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational collaboration. With more law schools introducing global clinical experiences into their curriculum, clinicians, students, clients, and practitioners are facing a host of new questions, challenges, and obstacles. These challenges are practical, logistical, ethical, and cultural. As research has found, finding a means of addressing these issues in ways that advance social justice has proven difficult. Striking a balance between client service and student learning, navigating relationships between different learning institutions, and setting ambitious but attainable goals are important elements of …

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Cornell Law Faculty Publications

The ongoing economic crisis caused by the COVID-19 pandemic has generated important proposals for addressing countries’ financial distress in the short to medium term. However, it has also made even more apparent the existing gaps in the global financial architecture writ large and highlighted the extent to which key actors pay closest attention to this infrastructure in situations of crisis. By then, of course, it is already too late.

This essay argues that the international community should use the energy generated in the current context to move toward ‘disaggregated sovereign bankruptcy’—which can be understood as a framework by which multiple …

Law’S Disaster: Heritage At Risk, Sara C. Bronin

Cornell Law Faculty Publications

Large-scale meteorological and geological events—including hurricanes, tropical storms, tornadoes, floods, blizzards, wildfires, earthquakes, extreme heat, and drought—have many consequences: loss of life, economic catastrophe, and destruction of homes among them. Perhaps less well-known are the threats to the historic and cultural sites that speak to human identity and create a sense of connection across generations. These sites are designated spaces of value, given their historical or cultural significance, and they are preserved to commemorate important moments in the story of the lived human experience. Yet hurricanes can destroy old buildings, especially ones that have not been structurally reinforced. Extreme heat …

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

The Contested Boundaries Of Emerging International Migration Law In The Post-Pandemic, Ian M. Kysel, Chantal Thomas

Cornell Law Faculty Publications

One measure of how and whether the COVID-19 pandemic reshapes the emerging field of international migration law will be the extent to which transnational civil society and activist movements can counteract the intensification of state border controls that the pandemic has triggered. Before the pandemic, transnational efforts to establish a new normative framework for migration seemed to be accelerating. These efforts included new, if nonbinding, global compacts on refugees and migration, and new, if modest, efforts at facilitating global cooperation, alongside innovative approaches to scholarly engagement. Such developments arguably contributed to an emerging framework for protecting migrants under international law. …

The Capital Commons: A Plan For Building Back Better And Beyond, Robert C. Hockett

Cornell Law Faculty Working Papers

To build our Republic back better we must build our banks better. The overwhelmingly greater part of our investment capital is now publicly generated yet privately managed. But pervasive and still underappreciated recursive collective action predicaments endemic to all exchange economies, combined with the decoupling of profits from production made possible by stratified capital ‘markets’ in such economies, render this unsustainable.

The only way to get public capital allocation right, and thus to get credit modulation and long-term productive investment right, is to manage public capital publicly and private capital privately. This paper shows how to do that through the …

Harm To Border Irreparable, Sara C. Bronin

Cornell Law Faculty Publications

No abstract provided.

Recruiting For The Future: A Realistic Road To A Points-Tested Visa Program In The United States, Stephen W. Yale-Loehr, Mackenzie Eason

Cornell Law Faculty Publications

For over 40 years, lawmakers and academics have been debating whether the United States should adopt a merit-or skills-based approach to labor immigration and a points-based program for selecting foreign workers. Despite having bipartisan support, efforts to adopt such a program thus far have been unsuccessful.

This idea is now back at the center of public debate, having been given new life by President Trump. He has called for “merit-based” immigration reforms that would make the United States more effective at attracting the world’s “best and brightest” and make it more competitive in the global marketplace for highly skilled foreign …

Recklessness, Intent, And War Crimes: Refining The Legal Standard And Clarifying The Role Of International Criminal Tribunals As A Source Of Customary International Law, Brian L. Cox

Cornell Law Faculty Publications

This Article explores the substantive and procedural aspects of the assertion that recklessness is included on the spectrum of mens rea for war crimes as a matter of customary international law. The substantive aspect of the inquiry, in Part I, engages in a critical assessment of the assertion that the jurisprudence of international criminal tribunals indicates that recklessness is sufficient to support a war crimes prosecution in general. The procedural aspect, in Part II, contests the prevailing “principal-agent” construct of describing the relationship between states and international criminal tribunals and the resulting role of tribunals in establishing customary international law. …

Reconciling Forum-Selection And Choice-Of-Law Clauses, Kevin M. Clermont

Cornell Law Faculty Publications

In a recent article, Professor Tanya Monestier argued that courts should change their ways so as to apply lex fori to all questions involving forum-selection clauses. I agree that lex fori governs matters of enforceability, but I disagree as to matters of interpretation. On the basis of case law and policy arguments, I argue that the law chosen by the contract should govern interpretation of the forum-selection clause.

Rules, Standards, And Such, Kevin M. Clermont

Cornell Law Faculty Publications

This Article aims to create a complete typology of the forms of decisional law. Distinguishing "rules" from "standards" is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it …

More Contract Lore, Robert A. Hillman

Cornell Law Faculty Publications

Contract lore consists of “traditional beliefs” about contract law that judges, lawyers, and scholars applying and writing about contract law, employ so routinely and confidently that the principles demonstrate how we perceive contract law today. Previously, I presented three illustrations of contract lore: First, expectancy damages put the injured party in as good a position as if there were no breach. Second, the reasons for a breach, “whether willful, negligent, or unavoidable, are irrelevant to the rules of performance and remedies.” Third, contract formation and interpretation focus on the parties’ intentions.

None of these principles are factually or historically even …

What The Pandemic Can Teach Climate Attorneys, Sara C. Bronin

Cornell Law Faculty Publications

The COVID-19 pandemic has caused more rapid changes to the law than most of us have seen in our lifetimes. These changes have remade, and in many cases severed, our social and economic connections to each other, in ways unprecedented except during war.

As many have argued, climate change is also a dire emergency, requiring an equally sweeping legal response. Rising seas, raging wildfires, and dramatic hurricanes have already destroyed lives and communities. We may be a few years away from irreversible devastation.

Yet we have not seen even a fraction of the legal reforms needed to reverse our march …

Connecticut Cities, Towns Cutting Red Tape Amid Covid-19 Crisis, Sara C. Bronin

Cornell Law Faculty Publications

Over the last two weeks, Governor Ned Lamont has issued two executive orders that have brought sweeping changes in the way municipalities across Connecticut function in the COVID-19 era. This short piece summarizes the changes in the executive orders as they relate to municipal procedures and decision-making.